The Article 50 Case in the Supreme
Court

Humpty-Dumpty’s Words are the Masters: Section 2(1) ECA 1972 means just what it is
intended to mean and “Neither More nor Less”

By Annabel Partridge

The eleven judges of the Supreme Court are deliberating on the
effect of section 2(1) of the European Communities Act 1972. Does
it act only as a conduit into the UK judicial sphere for EU rights,
which remain wholly contingent on the duration of our EU membership and
which will neatly evaporate on expiry of the Article 50 notice?
Or does section 2(1) “create” the EU rights in UK law, giving them
statutory life independent of EU membership, thereby rendering them
immune to disposal other than by another statute passed by Parliament?
That is the question.

A whole heap of other submissions and statements have been made on top
of those made in relation to section 2(1): the more you read them, the
more they resemble an enormous pile of autumn leaves, stacked high by
an assiduous gardener. But at the very bottom of the pile of
leaves lie the words in section 2(1). Reading through the High
Court judgment and the government’s and respondents’ submissions, there
seems to have been a significant collective misapprehension as to how
those words operate. This is very serious, not least because the
government’s submissions have failed to pick up on their real meaning,
when potentially that real meaning makes their case for them
beautifully.

We need to burrow into the bottom of the leaf pile and take another
look at those words. Humpty-Dumpty’s words from Alice come to
mind:

“…When I use a word,” said Humpty-Dumpty, “it means just what
I intended it to mean, and neither more nor less.” “But”, said Alice,
“the question is whether you can make a word mean different things.”
“Not so,” said Humpty-Dumpty, “the question is which is to be the
master. That’s all”.

1. The words in section 2(1): main and subordinate clauses

“All such [EU] rights,…from time to time created or arising by or
under the Treaties, and all such remedies and procedures from time to
time provided for by or under the Treaties, as in accordance with the
Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law…”

This section has been generally accepted as giving “legal effect”
to EU rights and obligations in the UK. In this way we are said to have
complied with our Treaty obligations in 1972 and with the later
Treaties. You can see the “legal effect” tag used
liberally in the case, by all parties, in bold in the subsection quoted
above. Further, most commentators see the wider wording “…are without further enactment to be given legal effect…”. The conventional view is that section 2(1) thereby actively bestows “legal effect”
on EU law in the UK. The submissions of the respondents, the
government and those of the fifth intervener, Lawyers for Britain, are
liberally sprinkled with references to this “legal effect”. The case does not really focus on the wording of the section as a whole but concentrates on the meaning of “legal effect”
in terms of EU law’s status in UK law. The respondents’ case,
successful so far, is effectively that because section 2(1) gave “legal effect”
to it, EU law has been fully rooted into UK domestic law by section
2(1) and can’t now be uprooted without another Act of Parliament.
The High Court agreed.

The trouble is that if you look at the words in section 2(1) as a whole, they do not actively and/or directly bestow “legal effect”
on EU law at all. The conventional view, which appears in most of
the textbooks as well as the court documents (the Government
submissions at paragraphs 21(b) and 44 for example) is based on a
misreading of the grammar of section 2(1). Section 2(1) is one
very long sentence and it is hard to identify the main clause and
operative verb but it seems that the conventional view mistakes the
phrase “…are without further enactment to be given legal effect..”
for the main, operative clause when, in reality, these words are merely
part of a subordinate clause. The main, operative clause is the
latter part, “…shall be recognised and available in law…”. The operative verb in the whole sentence is “shall”, not “are”.

Before we get onto the main clause and what it means, and the
consequences for the Supreme Court case, the subordinate clause
deserves closer examination. It does, after all, contain the
magic words “legal effect”. It reads, as underlined:-

"All such [EU] rights, etc...as in accordance with the Treaties are without further enactment to be given legal effect… shall be recognised and available in law….".

That “as” is important and appears to have been
overlooked. As a matter of grammar, and rather crucially, the
words underlined, being a subordinate clause only, do not actively give
the EU laws legal effect in the UK in the way an operative, active
clause would do. So, if they are not actively giving EU laws
legal effect, what are they doing?

They are merely describing the relevant EU laws to which section 2(1)
applies. They limit section 2(1) to those EU laws that are
supposed to be directly applicable or to be given direct effect (the
ones that are deemed not to need “further enactment”), as
distinct from those EU laws which have indirect effect, which do need
further enactment and which are subsequently dealt with in section
2(2). (The government submissions half-recognise this limitation point
in paragraph 21(b)).

Then, having established that section 2(1) is talking about
direct-effect EU laws, the drafting takes an unexpected turn.
Instead of actually and expressly giving those laws “legal effect”
there and then in the immediately-following active, operative clause,
the drafting suddenly uses different words. The draftsman appears to
have jumped horses half way round the track. The main, active
clause does not mention legal effect at all. It says, as referred
to above, “…shall be recognised and available in law…”.

It appears that the relevant EU rights/laws “as…are without further enactment to be given legal effect” (i.e. direct-effect EU laws) are nowhere actually expressly put into “legal effect”.
The wording of the subordinate clause remains perpetually in the future
tense and is unfulfilled. Note the words “to be”. Section 2(1) gives the EU direct-effect laws in question recognition and availability in UK law, but not express “legal effect”.

The government’s submissions at paragraphs 21(b) and 49 skate quite
close to understanding this but then miss the point entirely and veer
off in another direction, to do with the EU rights which work outside
the UK. The government has entirely missed the true meaning of
section 2(1). It has thereby weighed down its own case with unnecessary
difficulties.

With me so far? If you are struggling, two clues are the words “such” at the start of the section and the “as” at the start of the subordinate clause. The “as” clause is the twin of “such”. It is a shame that “All such rights…as…are…” is such a clunky and rather old-fashioned construction. Nowadays it would probably be phrased “All those rights….which.. are...”

Now we’ve got the hang of the grammar, try stripping out all the
extraneous wording but leaving behind the bare bones of both main and
subordinate clauses, and see how the whole thing reads:-

“All such [EU] rights…as in accordance with the Treaties are without further enactment to be given legal effect shall be recognised and available in law…” (main active clause underlined)

I hope light has dawned. Remember, “shall” is the active verb in this sentence, not “are”.

2. Why it matters

If this is the correct way to read s.2(1), it means that “legal effect”
is not technically what was expressly bestowed by s.2(1) upon EU
law. Although s.2(1) had referred in its subordinate clause to
the need to give EU laws legal effect, it then failed to do so in its
main clause, at least expressly. Instead, the wording to
focus on is “recognised and available in law…”.

We do not know why the person drafting this section plumped for this
wording and did not use, or mirror exactly, the wording in the
subordinate clause. He or she could have shoe-horned it in like
this, for example,

“…shall hereby have such legal effect and be recognised and available in law…”,

but this was not done.

Now that we know that section 2(1) does not expressly give “legal effect” to EU direct-effect law, but instead “recognises” it and makes it “available in law”, we are left to decide what these words mean and why they were used instead of “given legal effect”. Do these words just mean the same as “given legal effect”,
in which case I am wasting your time and must let the government’s case
stand up for itself, or fall, as the judges decide? Or do the
words mean something altogether different? If the words do mean
something different, what was it? What was the intention?

What if the very reason the section was drafted this way is that EU
direct-effect law was from the start intended by Parliament to be
treated somewhat differently from domestic laws? It could be that
the intention was for EU direct-effect law to be deliberately treated
as retaining a separate, unaltered, quality: indeed a new type of law,
equal, equivalent (in fact, superior) but not the same as UK domestic
law, living side by side with it within our legal system. Maybe the
point was to respect the “direct-effect” nature of the relevant EU laws
and treat them differently. Instead of section 2(1) giving them “legal effect”
in the sense that domestic law has legal effect, which would render the
EU direct-effect laws ordinary, maybe the aim was simply to recognise
their extraordinary nature, and then stand back and allow them to
function in the UK independently, directly and unaltered.

3. The Downton Abbey Analogy

Before I go any further, as an erstwhile law tutor, I must spend some
time with the slower members of the class. For those who are
still in the dark about the whole main/subordinate clause issue, let’s
use the same sentence structure as section 2(1) but with more vivid
facts…. imagine ITV’s Downton Abbey. You will recall Mrs Patmore
was the cook. She has written a long set of rules for the
kitchen, where her word is law, and for all things related to food. One
of her rules requires the serving of home-made cakes to the family
every afternoon and this is to be a cast-iron rule. Mrs Patmore’s
difficulty is that she has no dominion over the staff working in the
sitting room, where the family take tea, so she asks Mr Carson, the
butler, who does have such dominion, to write an edict for the staff
about afternoon tea:

“All such cakes from time to time created under the Kitchen Rules,
as in accordance with the Kitchen Rules are without further order to be
served daily at afternoon tea shall be delivered to the sitting room at 4pm each day and made available on the small walnut side table.”

Clarity not being Mr Carson’s strong point, the staff have to read this
edict several times before they understand, but understand they finally
do (maybe they take independent legal advice). The edict orders
certain cakes to be delivered daily to the sitting room and made
available, etc. That’s what it tells them to do. It does not
order, directly or at all, that the cakes are to be “served, etc” (that
order was in the Kitchen Rules, referred to in the subordinate
clause). The edict just says those particular cakes, which
under the Kitchen Rules are to be served at afternoon tea, must be
delivered and made available, etc.

Mr Carson, for whatever reason, has not included it in the edict,
although he could easily have done so. He could have written, at
the end of the edict, “…and served to the Crawley family and their guests”.
That would have carried the relevant Kitchen Rule to its furthest and
most literal degree. But he didn’t do that. (Perhaps he had
secret socialist leanings and felt uncomfortable with the business of
“serving”. Or, maybe he simply felt he had to break the meaning of
“serve” down into specific tasks for the staff.) The point is that the “serving”
bit of the Kitchen Rules did not expressly appear in the edict.
The wording of the edict was for delivering and making the cakes
available.

The staff, having scrutinized the edict, and taken legal advice,
probably think delivering the cakes at 4pm every day and making them
available on the walnut table is enough to comply with Mrs Patmore’s
rules. And they are right. What does “serve” mean anyway? We will explore later what real difference, if any, there might be between delivery/making available and “served, etc”.

Before launching into an examination of the meaning of “recognised and available in law”, there are two little footnotes to deal with:-

(i) Mrs Patmore might
well occasionally make other cakes which are not to be eaten at
afternoon tea but, say, delivered to the village to help feed the
poor. They are not covered by this edict. I expect Mr
Carson or someone else may have to write a new note every time for
those cakes, as that arrangement won’t be a daily occurrence - see
section 2(2).

(ii) I would make an observation about the
punctuation in section 2(1) (and Mr Carson’s edict). A comma
before the word “shall” would have helped with ease of comprehension, but it would not change the meaning.

4. Are “recognised and available in law” and “given legal effect” the same?

(i) The UK’s Treaty obligations

It has been suggested that “recognised and available in law” means the same thing as “given legal effect”.
To say otherwise would mean that the UK did not implement the Treaty of
Accession properly and would have been in breach of it from day one of
our membership. This would clearly be ridiculous. The
words “recognised and available in law” must therefore do at least some of the same job as “given legal effect”
from the point of view of the EU and the Treaty. They enabled the
UK Parliament to comply with its Treaty obligations by doing the job of
implementing, or parachuting, EU direct-effect law into UK law from
outside. This is the “conduit” point, to borrow a phrase from
Professor Mark Elliott. To that extent, the words do not change the
conventional understanding of section 2(1) as the mechanism for getting
EU law into the UK. There can be no argument that the UK
complied with its Treaty obligations. The EEC/EU was satisfied
that we had complied with the requirements of the Treaty. There
is clearly at least some significant overlap in meaning between “recognised and available” and “given legal effect”: enough for the UK to have complied with its Treaty obligations. EU direct-effect laws certainly have a place in the UK.

(For those who found the Downton Abbey analogy helpful, what we are looking at here is whether the words “delivered…and made available…” mean the same as “served”.
There is certainly some overlap, insofar as the former wording
unarguably gets the cakes into the sitting room, placed on the walnut
side table and capable of being eaten by the family there. That
is no doubt an accurate summary of Mrs Patmore’s notion of “served”, so she should be perfectly satisfied that her aim in the Kitchen Rules has been achieved).

(ii) UK law

The wording successfully parachuted the EU direct-effect laws into UK
law through a hole in the sovereignty sky created by section
2(1). EU law applies in the UK, and that’s that. The issue
arises, however, now that the UK is planning on reversing this
situation, as to the exact status of EU law once it parachuted in and
hit the ground. Did it become the same as UK domestic law which
has been debated, scrutinized and passed by the Houses of Parliament?
Or could it have some other status?

It was up to the UK, in 1972, to decide this question, as an internal
UK matter. Having been satisfied that we had complied with the
Treaty, the EEC/EU could not then interfere with the detail of how
we planned on characterising EEC/EU laws, in constitutional
terms. It was up to us. As well as acting as conduit, or
creating the hole in the sovereignty sky, section 2(1) deals with the
issue of the ensuing status of EU laws in the UK system.

The Respondents said, and the High Court agreed, that EU direct-effect
laws are treated as “created” in UK law by section 2(1). They
were wholly and properly made part of UK domestic law by virtue of by
section 2(1) and are now inextricably stitched into our domestic
law. They can’t be unstitched without another statute. The
assumption is that there is only one brand of domestic law in the UK,
that which is created in and flows from Parliament, and EU
direct-effect law must be a “sub-set” of domestic law.

This ruling was, however, based on the conventional view that “legal effect” was given to EU laws by section 2(1). The Respondents are effectively saying that the words “given legal effect”
amount to full adoption into domestic law. They say that the EU
rights, by virtue of section 2(1) allegedly giving them “legal effect”,
must be treated as having been through the mill of proper parliamentary
procedure (albeit in a split-second flash) and are created anew as UK
domestic law. The logic is that there is no other way of rights or laws
existing in UK law.

If section 2(1) did expressly give “legal effect” to the
rights, a conclusion of full adoption in domestic law is hard to
resist. But, as we have seen, section 2(1) doesn’t do that.
It instead gives the EU laws “recognition” and makes them “available in law”.

The person drafting section 2(1) had a choice here. He or she could have used the words “legal effect”
in the active, operative clause of the long sentence that is section
2(1). If they had been used, then (and I apologise for changing
analogies here, but needs must) section 2(1) could be characterised as
a whole-hearted hugging of the new EU rights to the UK’s legislative
bosom, like a new, adopted and much-loved baby. The baby would be
treated in the same way, and be indistinguishable from, the other
children in the family. He would have immaculate adoption
records, so legally there was no question that he was a child of the
family. In legal terms, this would be analogous to making the EU
laws an intrinsic part of UK domestic law. What actually happened,
however, is that these words were not chosen by the
draftsman. One might therefore conclude that in choosing not to
use those words, there might have been a conscious decision not to take
the EU laws on board in such an unreserved way and to give them
altogether different treatment from all domestic legislation that had
gone before.

(Back in the sitting room at Downton Abbey, the question arises
as to whether the Crawley family consider afternoon tea to have been
properly served. The Dowager Countess might well think not, having
stiffer notions of proper service, but the younger members of the
family might well roll their eyes at that and say “Granny, of course
tea is properly served, it’s here, isn’t it? Do you really need the
maids to hand it to you formally? Really, you can take tea in more than
one way nowadays.” My view is that the Dowager Countess is
correct. Leaving the cakes on the walnut side table without the
maids offering them round is not proper service according to her
time-honoured rules. It is equivalent to “recognised and made available” and does not amount to “given legal effect to”
in UK domestic law. But are the younger members of the family
also right in saying that buffet-style self-service rules can also have
an enforceable place in the modern sitting room?).

5. What does “recognised and available in law” mean?

Let us then examine the words which were ultimately chosen, “shall be recognised and available in law…”.
Certainly they give the EU laws recognition – the UK courts were able
to “see” them, and were not blind to them as they would be with any
other foreign law. In addition, the words must have given the EU laws some
sort of legal status. It is possible, however, and even likely,
that the words were intended to mean something slightly different from
the express “legal effect” as used in the subordinate clause,
otherwise why would the draftsman have bothered to jump horses half-way
round the track? Different, but equivalent (or, as we now know,
superior).

The wording used seems to hold the relevant EU laws slightly at a
distance, or at arm’s length. “Recognition” suggests
distance, between the viewer and the viewed, rather than a close
embrace or adoption. By way of contrast, as an alternative, the
draftsman could have used “…incorporated into the law of the United
Kingdom…” but, again, chose not to do so. “”Available” sounds
equally distant and off-hand, as if to say, “well, it’s over there if
you want it”, rather than placing the EU laws directly into the
public’s hands.

The wording shows not a little reluctance to treat the EU laws in the
“same” manner as UK law. It suggests, in fact, something quite
distinct from full legal domestic adoption of those laws and, instead,
the arrival of something new in UK law at that time, i.e. a parallel
but unmerged set of laws, applying here by virtue of UK membership of
the EU and not created via any debate or scrutiny in the Houses of
Parliament. It was not part of UK domestic law, but stood
separately, equivalent but different, “recognised and available”,
within our legal system. (Later, of course, case law made clear
that EU law would in fact prevail over domestic law where they
conflicted, and this is consistent with EU laws always having been
treated as a discrete body of law separate from domestic law).

Returning to our adopted baby analogy, the words suggest that rather
than holding the baby close, and treating it indistinguishably from the
other children, this baby was not to be whole-heartedly taken in to the
bosom of the family. It is recognised as legally different from the
other children of the family. The paperwork certainly doesn’t look as
rock-solid as full adoption papers would, and might only amount to a
glorified fostering arrangement, although it serves Social Services’
purposes well enough. Nevertheless, the baby lives with the family and
is looked after and cared for properly for 43 years, so Social Services
have no complaints, and to all intents and purposes the family all live
happily together for years. The only issue comes when it is time
to give the baby up. A foster child is never “yours” to give up in the
same way as your own biological children or a fully adopted child. No
need to go to court at all.

6. Summary

Maybe, therein lies the answer: that section 2(1) was intended to
comply with the Treaty obligations in getting EU direct-effect law into
the UK sphere but it fought shy of making them fully domestic or
indistinguishable from UK domestic laws. It created space for a
brand new category of law within the UK system but did not itself
create them. It used arm’s length words to characterise the
status EU laws would have within the UK.

It appears that “recognised and available in law” is not the same as “legal effect”. Overall, then, "recognition" and "availability in law" are much weaker characterisations of the nature of EU law within UK law than "given legal effect". “Legal effect”
arguably roots EU laws firmly into domestic law but recognition and
availability do not. Section 2(1) was indeed merely a conduit
only: it permitted the EU laws currently pertaining to the UK
entry, but left them "undomesticated", in their raw form, unaltered by
entry into the UK sphere and unadopted. One could say the EU laws
travelled through the conduit of section 2(1) without touching the
sides.

7. Direct Effect

I would add that this characterisation of EU law as recognised,
equivalent but not the same as domestic law, accords comfortably with
the expressions “directly applicable” and “direct effect”. It is
certainly arguable that this category of the EEC’s laws, as they then
were in 1972, were deliberately intended to take effect directly in the
Member States without any legal alteration or domestic adoption, and
were distinguished from those EU laws which were to have indirect
effect, such as most directives.

8. The Respondents’ and Government cases

If I am right in my analysis of section 2(1), and also in my analysis
of what the words mean, it is hard to see how the Respondents can
successfully make the argument that section 2(1) "created" the EU
rights in UK law and that they are now fully domestic UK law. They are
unadulterated EU laws.

Conversely, the words would make the case for the government and LFB
much more comprehensible and potentially render them much more
persuasive. There is a strong argument for saying the words do
exactly what the government lawyers say they do, i.e. they allow for a
second, parallel type of law to function within the UK legal system,
without being wholly adopted into domestic law. Section 2(1) merely
permits EU laws created by or under the Treaties to function here “for
the duration”.

If the EU direct-effect laws and rights never became part of UK
domestic law by virtue of section 2(1), but were simply permitted by
that section to exist and be used on their own terms within our system,
then when the UK exits the EU, at the end of the Article 50 period,
whenever that is, they will simply no longer apply here. Like the
Cheshire Cat, they will silently disappear (leaving only a smile in the
form of lots of implemented directives).

9. The European Union Act 2011

Section 18 of this Act re-visited the question of EU law’s application
within the UK legal system but as the wording used was the same, i.e. “recognised and available in law”, there is nothing further to add.

Conclusion

In conclusion:

Section 2(1) of the Act does not expressly or by implication
grant formal legal effect in UK domestic law to any EU laws intended by
the Treaties to take direct effect, nor create such laws in UK domestic
law;

Instead, it expressly grants such laws recognition and makes them
available in UK law as a distinct new category of laws separate from
and independent of UK domestic law;

For the purposes of the Treaties, the wording “recognised and available in law”
in section 2(1) was sufficient to allow EU direct-effect laws to
operate and be used within UK law and the UK therefore complied with
its obligations under the Treaties.

As is the way of litigation, these issues have only become clear on
reading and hearing the submissions made to the Supreme Court in
December. I have spent a year staring at section 2(1), having
been asked at short notice last winter to teach Public Law to
undergraduates in the spring term. I am no expert… I am really a
Land Law person but the words are the masters.

Annabel Partridge
15 January 2017

Annabel Partridge practised as a commercial litigation solicitor in
the 1990s and until June 2016 was a Senior Lecturer at the College of
Law (now University of Law). She is now about to start work as a
volunteer at her local Citizens Advice Bureau.